HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK – v. –, 2023 NBKB 14

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Her Majesty the Queen, in Right of the Province of New Brunswick v. His Tabernacle Family Church Inc., Philip James Hutchings, Jamie Hutchings, Keith Cody Butler and Dana Butler 2023 NBKB 014 SJM/108/2021 BETWEEN: HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK – and – HIS TABERNACLE FAMILY CHURCH INC., PHILIP JAMES HUTCHINGS, JAMIE HUTCHINGS, KEITH CODY BUTLER and DANA BUTLER DECISION BEFORE: Chief Justice Tracey K.

DeWare AT: Saint John, New Brunswick DATE OF HEARING: December 20, 2022 DATE OF DECISION: February 2, 2023 APPEARANCES: Jason Caissie, for the Plaintiff Jonathan Martin, for the Defendant DeWare, C.J.

INTRODUCTION [ 1 ] This motion requires the Court’s consideration of a question of law or mixed fact and law as submitted by the parties. Following a case management appearance on August 31, 2022, all parties agreed to proceed with the present motion in an attempt to resolve outstanding issues between these parties related to the enforcement of Covid-19 restrictions under the provincial Emergency Measures Act , RSNB 2011, c. 147 . [ 2 ] Precisely, the questions before the court on this motion have been framed by the parties as follows: 1.

Pursuant to the inherent jurisdiction of the court and following the direction of the court, with agreement of all parties, at the Case Conference that took place on August 31, 2022, a summery hearing answering the following questions of law or mixed fact and law on uncontroverted or not seriously controverted affidavit evidence: a. When deciding a contempt motion and whether a court order is sufficiently clear to support a finding of contempt, must the court hold the incorporated statutory text to the clarity standard set out in Carey v.

Laiken , 2015 SCC 17 at para 33 , so tha the statutory text incorporated into the order must “state clearly and unequivocally what should and should not be done”? b. If the Carey v. Laiken standard of clarity must be applied to the statutory text incorporated by reference into a court order, does the definition of “public indoor space” at

section 9.1(1) of NB Reg 2021-67 “clearly and unequivocally” include the commercial tent used by the Respondents on November 28, 2021, and December 5, 2021? i. Was the tent “clearly and unequivocally” a “building” as contemplated in the above definition? ii. Was the tent “clearly and unequivocally” an “other enclose place” as contemplated in the above definition? c. If the Court sides with the Province on question 1(

a) and decides that the statutory text must be interpreted in the same way as it would in any other context, such as in a

summary offence prosecution, was the church service held November 28, 2021 and December 5, 2021 a gathering in a “public indoor space” as defined at

section 9.1(1) of the NB Reg 2021-67 ? i. was the test a “building” as per the definition of “public indoor space” at

section 9.1(1) of the NB Reg 2021-67 ? ii. is the phrase “other enclosed place” in the definition of “public indoor space” at

section 9.1(1) of the NB Reg 2021-67 vague as per the constitutional doctrine of vagueness for reason that it lacks discernible parameters on what kinds of public places it catches or how “enclosed” they must be? iii. if the term “other enclosed place” is not vague, was the tent in fact an “other enclosed place” as per the definition of “public indoor space” at

section 9.1(1) of the NB Reg 2021-67 ? 2. Should any of the questions 1(

b) or 1(

c) be decided in the Moving Parties’ favour, an order dismissing the Province’s Amended Motion for Contempt. FACTS [ 3 ] On September 24, 2021 the Minister of Justice and Public Safety of New Brunswick under the authority of the Emergency Measures Ac t, RSNB 2011, c. 147 , declared a state of emergency and issued one of several Mandatory Orders that applied to the entire province.

The Applicant, Her Majesty the Queen in Right of the Province of New Brunswick (“the Applicant”) commenced these proceedings as a result of concerns surrounding compliance with the Mandatory Orders . [ 4 ] On October 3, 2021, and October 10, 2021, Philip Hutchings and Keith Cody Butler (“the Respondents”) received tickets issued by the province under the Emergency Measures Act for noncompliance with the Mandatory Order of September 24, 2021 (“the Mandatory Order ”) then in place.

[ 5 ] In October 2021 the Applicant filed a preliminary motion seeking an interim order preventing the continuation of reputed public gatherings occurring at the Respondent church which the Applicant suggests were taking place in contravention of the revised Mandatory Order . [ 6 ] On October 8, 2021, the parties appeared in court and concluded a consent order which included the following terms: 1.

The intended Applicants are granted a preliminary injunction prohibiting the respondents from the continuation and repetition of public gatherings which are in contravention of the COVID-19 Preventative Measures Regulation — Public Health Act and the Revised Mandatory Order COVID-19 under the Emergency Measures Act , R.S.N.B. 2011, c. 147 2. The Respondents shall make all reasonable efforts to ensure compliance with the COVID-19 Preventative Measures Regulation — Public Health Act and the Revised Mandatory Order COVID-19 under the Emergency Measures Act , supra related to His Tabernacle Family . 3.

The within Order is to remain in effect until such time as the Application to be filed under

section 55 of the Public Health Act is heard. [Emphasis mine] [ 7 ] The Applicant subsequently filed a further motion seeking to have the Respondents found in contempt of the October 8th Consent Order. Further consent orders were signed between the parties on each of October 22 and October 29, 2021. In these subsequent orders the Respondents acknowledged being in contempt of the October 8, 2021 consent order. [ 8 ] On November 7, 2021, the Respondents moved their weekly church service outdoors in order to avoid the strict indoor COVID- 19 restrictions as set out in the Mandatory Order .

The Respondents rented a commercial tent which they started to use for their church services on or about November 21, 2021. The tent was a large commercial tent with dimensions of 30 x 50’. The tent included a roof canopy and side wall curtains. During the first services, the sidewalls of the tent were left open. As the weather became cooler, the Respondents began to lower the sidewalls. The commercial tent did not actually have doors but was equipped with three - 6 foot x 8 foot openings which were used to access the tent.

The sidewalls were weighted when down which helped to keep them in place. [ 9 ] On December 2, 2021, the Applicant wrote to the Respondents advising that the tent met the definition of a “ public indoor space ” as defined in the Mandatory Order . The Applicant was of the view that since the commercial tent was a “ public indoor space ”, COVID-19 restrictions then in place pursuant to the Mandatory Order , would still need to be followed. The Respondent’s solicitor responded to the Applicant’s correspondence on December 3, 2021 expressing the Respondent’s view that the tent was not a “ public indoor space ”.

A further church service was held in the tent on December 5, 2021. The Applicant filed another motion following this church service alleging that the Respondents were in contempt of the previously signed consent orders and were not complying with the Mandatory Order . ISSUES [ 10 ] In the court’s view the issues to be resolved in this matter are as follows:

(1) Is a commercial tent used by the Respondents a “ public indoor space ” as defined in the Mandatory Order;

(2) Does the “ clear and unequivocal ” standard set out in Carey v. Laiken apply to the statutory text of the mandatory order; and

(3) Is the definition at issue sufficiently clear to support a finding of contempt n the context of the Consent Order of October 8 th , 2021. LAW AND ANALYSIS

[11] Subsection 9.1 of the COVID-19 Preventative Measures Regulations, NB Reg 2021-67 [NB Reg 2021-67], defines a “PublicIndoor Space” as follows: “public indoor space” means all or any part of a building or other enclosed place to which members of the public have access as of rightor by express or implied invitation, and includes a motor vehicle or ferry that is used or made available for public transit. (espace publicintérieur) « espace public intérieur » S’entend de tout ou

partie d’un bâtiment ou autre endroit fermé auquel le public a accès de plein droit ou surinvitation expresse ou tacite et s’entend également d’un véhicule à moteur ou d’un traversier qui est utilisé ou mis à la disposition dupublic comme moyen de transport en commun. (public indoor space) [12] The position of the Applicant has remained throughout this matter that a commercial tent with four walls constitutes a “publicindoor space”. On December 11, 2021, the Applicant wrote to the Respondent setting out their position that the commercial tentconstituted a “public indoor space”.

In this letter the Applicant stated as follows: “The National Building Code applies to buildings, which are defined as “any structure used or intended for supporting or sheltering anyuse of occupancy”, which would include large commercial tents and air supported structures, such as those used for festivals and faithgatherings. Any gatherings in such a tent is considered to be indoors and must follow all rules for indoor gatherings.

Large commercialtents to which the National Building Code applies will have a capacity limit.” [13] The Applicant points out that the COVID-19 restrictions within public indoor spaces were designed to reduce the spread of thevirus as a result of gatherings. The Applicant notes that the risks of indoor gatherings were higher than events that were held outdoors.

The Applicant maintains that the commercial tent created an “enclosed space” which by its nature increased the risk of the spread of thevirus and therefore is subject to the restrictions set out in the Mandatory Order. [14] The Applicant in their Pre-Hearing Brief referred the court to

definitions available of “enclosed place” noting at paragraph 39 asfollows: - The Cambridge Dictionary defines Enclosed as meaning: “surrounded by walls, objects or structures”. (source:www.dictionary.cambridge.org) - Merriam Webster Dictionary defines Enclosed as meaning: “closed in or fenced off” (source: www.merriam-webster.com) - Dictionary.com defines Enclosed as meaning: “1. To shut or hem in; close in on all sides. 2.

To surround, as with a fence or wall…”(source: www.dictionary.com) - Oxford Learner’s Dictionary defines Enclosed as meaning: “With walls all around” (source: www.oxfordlearnersdictionary.com) - Collins Dictionary defines Enclosed as meaning: “Completely surrounded by something, especially a wall or a similar barrier (source:www.collinsdictionary.com) [15] The parties refer the Court to Justice Cromwell’s opinion in Carey v. Laiken 2015 SCC 17 , [2015] 2 S.C.R. 79 forguidance of the necessary elements to establish civil contempt.

In particular, Justice Cromwell provides a framework for a court’sanalysis of civil contempt at paragraphs 30 to 35 as follows: [30] Contempt of court “rest[s] on the power of the court to uphold its dignity and process. . . . The rule of law is directly dependent onthe ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is “firstand foremost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v.

Elta Golf Inc., 2006 SCC 52,[2006] 2 S.C.R. 612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para.20. [31] The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The

distinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g.,United Nurses, at p. 931; Poje v. Attorney General for British Columbia, (SCC), [1953] 1 S.C.R. 516, at p. 522. Withcivil contempt, where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R.J. Sharpe, Injunctions and Specific Performance (2nd ed. (loose-leaf)), at ¶ 6.100. However, one purpose of sentencing for civil contemptis punishment for breaching a court order: Chiang (Trustee of) v.

Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117. Courtssometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter othersfrom comparable conduct: Sharpe, at ¶ 6.100. [32] Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services forChildren and Adults v. G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, atpara. 71; Bhatnager v. Canada (Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v.

Honey, 2009 BCCA 112, 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11,298 N.S.R. (2d) 303, at para. 23.

These three elements, coupled with the heightened standard of proof, help to ensure that the potentialpenal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11. [33] The first element is that the order alleged to have been breached “must state clearly and unequivocally what should andshould not be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. IndusCorp., (Ont. S.C.J.), at para. 40.

This requirement of clarity ensures that a party will not be found in contempt wherean order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it ismissing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstanceshave obscured its meaning: Culligan Canada Ltd. v.

Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21. [34] The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager,at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor mayattract liability on the basis of the wilful blindness doctrine (ibid.). [35] Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed todo the act that the order compels: Sheppard v.

Sheppard (1976), (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8. Themeaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily. [Emphasis mine] [16] The first element of the Carey v. Laiken test require the words of the order to state clearly what “should or should not be done”.In this case, the October 8, 2021 Consent Order clearly states that the Respondents shall make all reasonable efforts to ensurecompliance with the Mandatory Order.

This term is clear in the sense the agreement to make all reasonable efforts to follow theMandatory Order is clear and easily understandable. However, is the Respondent’s decision to erect a tent for church services coupledwith the failure to follow the guidelines for “indoor public spaces” clearly in contravention of the Mandatory Order, and therefore theConsent Order? That is the question which must be answered when considering the first element of the Carey v.

Laiken test. [17] The Respondents suggest that in considering the clarity of the October 8th, 2021 Consent Order, it is necessary to consider theclarity of the Mandatory Order. The Respondents refer the Court to the British Columbia Court of Appeal’s directions on this point inWorker’s Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd., 2017 BCCA 19 at paragraphs 102 and106 as follows: [102] In my view, the fact that some provisions of the Act or Regulation may be attacked as unclear does not render an order tocomply with the Act and Regulation incapable of enforcement by contempt.

If the breaches alleged are founded on an uncertainstatutory provision, then the breaches might not be made out and the conduct alleged could not be found to be in breach of thecourt order. The reasoning for this is that the applicant has not demonstrated, beyond a reasonable doubt, that a provision has beenbreached, since it may be reasonable to find that the impugned act or omission was not, for example, within the scope of the provision’sprohibition.

The heavy lifting required of the court is to review the evidence adduced and the particular statutory or regulatoryprovision to ascertain if the breach is made out on the applicable standard, and whether that breach warrants a finding ofcontempt. […]

[106] I would also note that this is somewhat of an extraordinary case. The matter before the court involves a lengthy and continuing history of multiple types of workplace conduct said to be of a very serious nature. It involves for-profit actors with statutory duties in a highly regulated workplace. There have been multiple Board orders, compliance reports and administrative penalties.

In such circumstances, an order requiring compliance with the statute and regulations may be viewed somewhat differently than matters involving isolated incidents or infrequent conduct. [Emphasis mine] [ 18 ] The Applicant also referred the Court to the guidance provided by the British Columbia Court of Appeal in Seattle Environment quoting paragraph 86 as follows: [86] While the Act and Regulation may have some complexity, the persons to whom they apply voluntarily engage in a business for profit in a highly regulated area, and do so on the understanding that they must comply with the Act and Regulation .

The Act and Regulation are concerned with workplace safety. Requiring familiarity and understanding of statutory and regulatory requirements for workplace safety from voluntary industry participants is not an impermissibly onerous requirement. This is especially so, given the nature of the business in this case. [Emphasis mine] [ 19 ] The Applicant and the Respondents interpret the directives provided in Seattle Environmental quite differently. According to the Applicant, Seattle Environmental stands for the proposition that if an order clearly requires reasonable steps to be taken to ensure compliance with

an Act, the fact that there may be arguments available on the appropriate

interpretation of the Act does not impact the clarity of the order itself. The Respondents suggest that Seattle Environmental confirms the clarity of the order requires clarity of the relevant portions of the relevant Regulation or Act. [ 20 ] It is worth noting the significant distinguishing features between the facts before the Court in Seattle Environmental and the case at bar. Seattle Environmental involved parties who had longstanding relationships coupled with ongoing litigation involving numerous court orders.

The parties accused to be in contempt of an order requiring their compliance with health had safety standards set out by the Workers Compensation Board. There were long standing issues between the business owners accused of violating an order in their failure to follow the Provincial Worker’s Compensation Regulations and the Worker’s Compensation Board. This is factually very different from the current situation which compels compliance with Mandatory Orders issued in the context of an international pandemic.

Understandably, provincial governments acted as quickly as they could based on the best information available in a constantly evolving environment in the issuance of Mandatory Orders . The population likewise did its best to keep up with the latest restrictions and Mandatory Orders . However, this is very different than a situation where you are seeking compliance with long standing legislation such as in the context of the Worker’s Compensation regime. [ 21 ] While the parties take differing views on the weight to be given to the

interpretation of the underlying legislative enactment in this case, there is agreement that a determination of whether or not “ public indoor space ” includes a commercial tent is necessary. Both parties referred the Court to various authorities on the issue of statutory

interpretation. Driedger in his text on statutory

interpretation as relied upon by the Supreme Court of Canada in Bell ExpressVu Ltd Partnership v. Rex , 2002 SCC 42 describes the test for statutory

interpretation as follows: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [ 22 ] During the course of oral argument, I posed the question to the Applicant’s counsel as to when the commercial tent became a “ public indoor space ” or an “ enclosed space ”? Did this description apply when two sidewalls were down, when three sidewalls were down or when all four sidewalls were down? Counsel for the Applicant was unable to answer the question.

Further, the Court notes that in the correspondence of December 2 nd , 2021 from the Applicant’s counsel, there is advice given that the tent meets the definition of “ public indoor space ” but does not explain how this is so, or when it falls within the definition.

The correspondence notes: “The tent used by your client for their service would meet the definition of “public indoor space” and as such, any gathering in such venue would be considered an indoor faith gathering, and as such, restrictions on such gatherings found in the Revised Mandatory Order Covid-19 would apply to such a gathering.” [ 23 ] The Respondents point out the variation in definition found in the French version of the enactment which states: « espace public intérieur » s’entend de toute ou

partie d’un bâtiment ou autre endroit fermé auquel le public a accès de plein droit ou

sur invitation expresse ou tacite et s’entend également d’un véhicule à moteur ou d’un traversier qui est utilisé ou mis à la disposition dupublic comme moyen de transport en commun. (public indoor space) [Emphasis mine] [24] In the present matter, there is no doubt that the public had access to the commercial tent, that portion of the definition is satisfied.The commercial tent is not a means of public transit, so those provisions are not pertinent. The key factor is whether or not thecommercial tent could be considered an “enclosed place”.

There seems to be an acknowledgement on the part of the Applicant that,initially when the commercial tent was being used with all or some of the sidewalls up, it would not have been considered an “enclosedspace”. The Applicant referred the Court to various academic dictionaries which provide

definitions of “enclosed”. These include theconcepts of “closed in”, “surround”, “shut or hem in”, “walls all around”. [25] Giving a plain

interpretation to the term “enclosed space” and using the aides supplied by the Applicant leads to the conclusionthat the four walls of the tent create the “enclosed space”. According to the Applicant, this then provides the reasoning to conclude thatthe commercial tent falls into the potential categories of “public indoor space”. However, the French definition appears to add anadditional requirement not found in the English definition, and that is the notion of “closed” or “fermé”.

If a requirement to become an“enclosed space” includes the notion of “closed” or “fermé”, then it is reasonable to question whether or not a tent with openings ratherthen doors and no floor can actually be considered enclosed? [26] It is concerning to the Court that the Respondents were not advised by the Applicant that depending on the manner of use of thecommercial tent, they would be in violation of the Mandatory Order. The Applicant was aware that initially the Respondents wereusing the commercial tent with the side walls up.

My understanding of the Applicant’s position is that such activity would not be inviolation of the Mandatory Order as it relates to “public indoor spaces”. However, once all four side walls of the tent were down, thenthe Applicant was of the view that the Mandatory Order had been breached. At a minimum, it was incumbent upon the Applicant toadvise the Respondents at what point they would be in breach of the Mandatory Order. Clearly a commercial tent with all the sidewallsup cannot be considered an “enclosed space” or “public indoor space” on any

interpretation given to the definition. Arguably, thecommercial tent with four sidewalls down could fall with the parameters of an “enclosed space”. Therefore, there is a point where the useof the commercial tent becomes an “enclosed space”. However, as I write this decision, it is unclear to me when that occurs and counselfor the Applicant were unable to provide a clear answer to the question.

If the Court is unable to determine when the commercial tentbecame an “enclosed space” and the Applicant’s counsel is unable to determine when the tent became an “enclosed space”, the Courtstruggles to understand how the Respondents were to know when the tent became an “enclosed space”. [27] Justice Cromwell’s additional comments on the scope and discretionary nature of the contempt power as set out in paragraphs(36) and (37) are particularly relevant in the present proceedings: [36] The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with courtorders: see, e.g., Hefkey v.

Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. If contempt is found too easily, “a court’s outragemight be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks toprotect”: Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt ofcourt cannot be reduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065, at p. 1078, citing Daigle v.

St-Gabriel-de-Brandon (Paroisse), (QCCA), [1991] R.D.J. 249 (Que. C.A.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32. It isan enforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v.

Hamilton (City), 2008 ONCA182, 89 O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64. [37] For example, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judgeentertaining a contempt motion generally retains some discretion to decline to make a finding of contempt: see, e.g., Morrow, Power v.Newfoundland Telephone Co. (1994), (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. C.A.), at para. 20; TG Industries,at para. 31.

While I prefer not to delineate the full scope of this discretion, given that the issue was not argued before us, I wish to leaveopen the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where itwould work an injustice in the circumstances of the case. [Emphasis mine] [28] As noted by Justice Cromwell, the contempt power is an enforcement of last resort. That said, there may be many situationswhere the use of the Court’s civil contempt power is an entirely appropriate procedure to seek compliance with court orders.

This may beparticularly true in situations which have an impact on society as a whole, not simply the parties, as in the context of enforcingMandatory Orders during a pandemic. The Applicant, like all governments, was required to protect the citizens of New Brunswickfrom the impact of Covid-19, including the enforcement of measures designed to reduce its spread. In the event the facts of this particularsituation were different, such as the Respondents continuing to hold services indoor at their church while not following the requirements

of the Mandatory Order , such as masking or social distancing, this Court could have found the contempt option as an entirely appropriate enforcement mechanism. However, the allegations of breach of the October 8 th Consent Order in these circumstances is far more nuanced given the ambiguity surrounding the notion of “ public indoor space ” and “ enclosed space ”. [ 29 ] It is difficult for this Court to conclude beyond a reasonable doubt that these Respondents, in moving the church services to a commercial tent, knew that they were breaching the Mandatory Order and did so intentionally.

An alternative and reasonable point of view can be that the Respondents moved their church services to the commercial tent in an attempt to avoid the restrictions on “ public indoor space ” and therefore avoid breaching the Mandatory Order . [ 30 ] There is no doubt the Respondents were fully aware of the terms of the October 8 th Consent Order and therefore the second element of the Carey v. Laiken test is met. For reasons already discussed, I am unable to conclude, in these circumstances, that the Respondents intentionally breached the October 8 th Consent Order. The third element of the Carey v.

Laiken test is not met. [ 31 ] Returning to the question as posed by the parties, I offer the following additional analysis: (

a) In my view, when deciding a contempt motion involving adherence to an Act and incorporating statutory text, the parties must be able to clearly ascertain the scope and meaning of the underlying enactment. If a party, for whatever reason is unable to clearly understand the nature of the actions which they are either compelled to do or prohibited from doing, it will not be reasonable or just to hold them in contempt for their resulting non-compliance. (

b) Applying the Carey v. Laiken test, I am unable to determine that the commercial tent was a “ public indoor space ” or an “ enclosed space ”. The commercial tent was never closed or “ fermé ”, as is suggested in the French iteration of the definition. The commercial tent had openings for doors and was not equipped with a floor. These traits make it difficult to conclude that it was “ closed ” or “ fermé ” which appears to be a necessary element in the definition. However, using plain language and a purposive approach to the

interpretation of the definition, it is conceivable that a large commercial tent with a roof and weighted sidewalls could be considered an “ enclosed space ”. The question is before the Court in the context of contempt proceedings when clarity is particularly important. [ 32 ] In the present matter, if the Applicant had provided guidance to the Respondents as to what use of the commercial tent would be considered a “ private indoor space ”, the Court may have been more open to a consideration of contempt.

If the Applicant had clearly stated that once two, three, or four sidewalls of the commercial tent were down, it would be considered a “ private indoor space ” and the Respondents had subsequently ignored those recommendations, then the argument that they were knowingly breaching the October 8 th Consent Order would be much stronger.

However, that never occurred. [ 33 ] Based on the above analysis, I am unable to conclude that the commercial tent was “clearly and unequivocally” an “ enclosed space ” as described in the Mandatory Order , and as such, the Respondents cannot be held in contempt of the Order pursuant to the principles as set out in Carey v. Laiken . As the first question as set out in the Motion has been decided in the Respondents favour and given the manner in which the parties have submitted these questions to the Court, the Applicant’s Motion is dismissed.

CONCLUSION [ 34 ] For all the aforementioned reasons, the Court concludes that the Respondents cannot be found in contempt pursuant to the principles set out in Carey v. Laiken , and the Applicant’s Motion is therefore dismissed. I make no order as to costs but will hear the parties on the issue if necessary. DATED at Moncton, New Brunswick this 2 nd day of February 2023. _____________________________________ Tracey K. DeWare, Chief Justice of the Court of King’s Bench of New Brunswick